Smith v. Life Ass'n of America

Anderson, J., delivered the opinion of the court. The plaintiff in error, who was plaintiff below, instituted an action of trespass on the case, in the circuit court of Powhatan county, against the Life Association of America, defendant, to recover a claim of $4,000. He proceeded against said association as a non-resident defendant, who had effects or debts due it in said county of Powhatan, and by attachment and garnishment; and by order of publication against the non-resident defendant. On the 9th of April, 1878, the plaintiff recovered a judgment against the defendant for $2,000, and against R. F. Archer, who had been garnisheed, for $1,236, with interest on part thereof, in part of his judgment against the defendant. On the 6th of September following, the said Life Association filed a petition in said court, setting out the judgments aforesaid, and averring that petitioner was not served with a copy of said attachment, or with any process issued in said suit, sixty days before judgment was rendered thereon against him, and that defendant did not appear and make defence in said suit, and that the defendant is not indebted to the said plaintiff in the amount of said judgment, or in any amount whatever; and prayed that [382] the said judgments may be reopened and reheard, and that the defendant may be allowed to make such defence as it may be advised is lawful and proper. And upon said petition, the defendant having given satisfactory security for costs, it was ordered that the cause be reinstated on the docket, the judgment aforesaid set aside, and the cause reheard. And thereupon, on the same day, oh the petition of the defendant setting out that the controversy was between citizens of different States—the petitioner being at the time this suit was instituted, and still is, a citizen of Missouri, and the defendant was, and is, a citizen of Virginia—the said cause was by order of the said circuit court of Powhatan removed to the circuit court of the United States for the eastern district of Virginia. The plaintiff excepted to the rulings of the court—first, granting the defendant a rehearing, and second, removing the cause to the circuit court of. the United States, and to the said orders obtained a writ of error from this court. The reopening of the case by setting aside said judgments is assigned as error, because the defendant had been served with sufficient process and notice according to Code of 1873, ch. 166, § 7. The proceeding in this suit was not under that section. It is not a proceeding against a corporation incorporated by the laws of this State, nor is it against a foreign corpoation transacting business in this State. It appears by the record that it is a corporation of the State of Missouri; and that the alleged contract, for breach of which this suit was brought, was not made in this State, but was made in the State of Ohio, and the affidavit upon which the order of publication was issued, avers that it was a non-resident corporation, having estate or debts due it in the county of Powhatan, in the State of Virginia, and an attachment was sued out to subject such estate of or debts due the nonresident defendant to the payment of the plaintiffs claim. [383] And neither process in the aforesaid suit, nor copy of the aforesaid attachment, having been served on the said defendant, it is ordered that it appear here within one month after the due publication of this order and do,” &c. By section 10, on affidavit that the defendant is not a resident of the State, or in any suit where the names of the persons interested in the subject to be divided or disposed of are unknown, an order of publication may be entered against such non-resident, or unknown defendant. And by section 16, any unknown party, or other defendant, who was not served with process, and did not appear in the case before the date of such judgment, decree or order, * * * may within five years from that date, if he be not served with a copy of such judgment, decree or order, more than ■ a year before the end of the said five years, and if he be so served, then within one year from the time of such service, petition to have the case reheard, and may plead or answer, and have any injustice in the proceeding corrected. In this case the judgment against the non-resident defendant on publication, was rendered on the 9th day of April, 1878. And on the 6th of September of the same year, its petition to reopen and rehear the case was presented to the court. We are of opinion, therefore, that the court did not err in ordering the case to be reopened and allowing the defendant to plead. The same order is warranted by § 29, ch. 148, p. 1015 of the Code. Another assignment of error is the order directing the cause to be removed to the federal court, the laws of the United States requiring the motion for the removal to be made at the first term at which the cause might be tried. The motion for the removal was made on the same day that the order was made, upon the petition of the defendant, to reopen the case and to allow the defendant to plead. The defendant thereupon, on the same day, entered a demurrer to the plaintiff’s declaration, and to each of the [384] several counts thereof, and entered its plea to the action, and then, on the same day, presented its petition to the court to remove the cause to the circuit court of the United States. This was the first time at which the cause could be tried, after the appearance of the defendant. But this question, if there could have been any doubt about it, is decisively answered by a recent decision of the supreme court of the United States, in Harter v. Kernochan, 103 United States R. Otto, 13, p. 567. The court said, “It is sufficient to say that the defendant, within the period fixed by the statute, appeared and secured the opening of the decree. The first term thereafter, at which the cause could properly have been tried, upon the merits, as .to him, was the term at which, within the meaning of the act, he should have filed his petition for removal.” And the defendant in this case appeared within the period fixed by the statute and secured the opening or setting aside of the judgment, and the privilege of pleading to the plaintiff’s action, and at the same term filed his petition for the removal, which, according to this decision, was in ample time, as it holds that the first term thereafter he might have properly, within the meaning of the act, have filed his petition for the removal of the cause. The plaintiff also excepted to the ruling of the court refusing to allow him to file his answer to the defendant’s petition to open the case, and allow him to appear and make his defence, the day after the court had passed upon said petition and entered its order. But as the whole matter was in the breast of the court, if sufficient cause was presented by the answer for rejecting defendant’s petition, the court might and ought to have set aside the order made the day before, and allowed the plaintiff to file Ms answer. But upon an inspection of the answer, which is made a part of the record by the bill of exceptions, and seeing that it does not set forth grounds which [385] would have warranted the denial of the defendant’s said petition, we are of opinion that there is no error in the overruling by the court of plaintiff’s motion. There are other assignments of error by the plaintiff which we have considered, but do not deem sufficient to warrant a reversal of the judgment of the court below. We are of opinion therefore to affirm the judgment, with costs, &c. Judgment affirmed.